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MEMBER DIARY

Closing Guantanamo

Easier Said Than Done

President-Elect Obama has recently reiterated his intentions to close the terrorist detention facility at the U.S. installation at Guantanamo Bay, Cuba. As former Deputy Assistant Secretary of Defense for Detainee Affairs, Charles “Cully” Stimson, has noted – actually closing the facility will prove far more difficult than Obama’s campaign rhetoric would suggest.

In moving forward with this objective, President-Elect Obama would be well advised to scrap reliance on the recent draft blueprint for closing Guantanamo, put forth by Dr. Sarah E. Mendelson of the Center for Strategic and International Studies (CSIS). The problems with this draft report are numerous.

First, the CSIS report seemingly makes broad policy assumptions regarding American views on terrorist detention at Guantanamo, which assumptions conveniently minimize everyday Americans’ equally compelling and counter-veiling concerns regarding threats of and protection from future terrorist attack. Rightly or wrongly, let me suggest that the vast majority of Americans don’t spend a great deal of time concerning themselves whether Guantanamo stays open or is closed.

Albeit, there are those who urge the moral imperative of its closure and they may, in fact, be correct; yet, if a compelling case for protection of the American way of life by continued use of Guantanamo were made, such view would likely be held by Americans with comparable moral authority to that cited by the anti-Guantanamo crowd. Disparate views on the objectives for continued detention of foreign terrorists may permissibly create disparate claims of moral authority in support of respective positions. This is not to urge a Machiavellian response to the broader Guantanamo question, but simply to note that due to the CSIS report’s absence of a demonstrated nexus between the closure of Guantanamo and American safety and welfare, the report falls woefully short of a persuasive document and reliable basis for an evolving public policy discussion on terrorist detention.

The CSIS conclusory claim that “[s]ustaining symbols of alienation such as Guantanamo have served as a recruitment tool for individuals and groups who seek to harm the United States, increasing, not decreasing, danger,” without more, insufficiently demonstrates such a nexus. Indeed, such a claim is not unique, for similar suggestions have been made by other critics of the continued use of Guantanamo. Yet, research on this enhanced recruitment of terrorists doesn’t reveal substantive, objective authority for this conclusion – more and more, it just sounds like it should be true. In fact, there appears to be a rather alarming repetition of circular reference amongst the proponents of this conclusion to bootstrap their own arguments.

More troubling regarding this conclusion is that it remains unclear how a more prototypical criminal prosecution approach towards detainees, likely resulting in equally publicized and severe American action against the detainees (including the potential application of the death penalty), would lessen the use by “terrorists” of American action and detention as a recruitment tool for individuals and groups to harm the United States. More viscerally, however, this whole argument seems largely bogus to me. The notion that Al-Qaeda, which is ideologically driven to destroy America and which as an organization has been able to permeate radical Islamic communities from Algeria to Pakistan with amazing success and regularity, needs to or does draw upon Guantanamo as a basis to further recruit seems extraordinarily specious to me.

Al-Qaeda recognizes something which the liberal left seemingly wishes to ignore. Al-Qaeda is at war with the United States – it is incredibly simplistic to conclude that we possess the authority to control Al-Qaeda’s level of vengeance for America and, ultimately, such thinking will render America unnecessarily vulnerable to terrorist attack.

In another seemingly bootstrapped argument, Dr. Mendelson in the CSIS draft urges that continued operation of Guantanamo has resulted in “well-documented” damage to U.S. credibility and influence. Really? With whom? Again, I have combed report after report seeking the “documentation” which Mendelson references and can only conclude that this criticism, again, is largely the result of Guantanamo opponents cross-pollinating each other’s criticisms with their own, without the ability to point to an objective report or analysis which demonstrates this critical point. While ultimately it may be true that U.S. credibility has been damaged – a conclusion which at this point I am unwilling to necessarily concede — the glaring paucity of specifically referenced documentation in support of the CSIS conclusions reveals an infirmity in its report, which is worthy of further clarification.

Third, the CSIS report concludes that “continued long-term detention without charge is not consistent with how our closest allies or advanced democracies have come to respond to terrorist threats or attacks.” This argument demands very careful scrutiny.

In rebuttal, “long-term detention without charge” is entirely consistent with the long-standing principle in times of war that the “enemy” may be detained, without greater obligation, except as may be imposed under terms of the Geneva Convention and other applicable international treaties. As Mr. Stimson notes, even President-Elect Obama seemingly understands this point. Hence, the broad brush assertion that such continued long-term detention without charge is not consistent with how our closest allies have responded may be factually incorrect, where the British, French and others have all historically held enemy combatants without charge during times of war. Beyond that, however, one can not escape the critical underpinning to the CSIS assertion, which is, to wit: that terrorist threats or attacks are, at their core, criminal acts, and not acts of war.

If this is truly the underpinning of the CSIS report, it represents then a return to the failed approach employed by democracies in the pre-9/11 world. Terrorism, at its best, is the callous disregard for human life on a scale which renders normal criminal sanction as woefully inadequate to meet the typical principles of criminal prosecution – retribution, rehabilitation, restitution and deterrence. At its worst, terrorism is nothing other than an ideologically driven, act of war which is designed to destroy the very fabric of civilized society. To liken this type of activity to everyday criminal activity, by employing comparable prosecutorial approaches out of the gate, grossly understates its impact on America and its allies.

Fourth, I would agree that the value of continued detention at Guantanamo, from an intelligence gathering perspective, is further marginalized over time. The CSIS report correctly points out that the ability to obtain significant useful information after sustained detention is probably not enhanced by additional detention – in other words, if interrogators were to get information under threat of continued detention, they would have achieved success by now. Further, CSIS is right in asserting that many of these detainees are sufficiently “out of the loop” that any information that they could provide may not be helpful in terms of evaluating current risk, etc. However, I am unwilling to concede as the CSIS report seemingly urges that there is absolutely no intelligence benefit to the continued detention of this particular set of detainees. Such a prospective conclusion can only be evaluated on a case by case basis.

Fifth, the most significant problem with the CSIS report is not found in its conclusory assumptions, but in its recommendation – which Dr. Mendelson coins as R2T2. This proposal contemplates that Guantanamo be closed after employing the following process with the 250 to 270 or so detainees still held there: review, release/transfer and try.

There are problems with this approach at each of these stages.

The CSIS report proposes that a “blue ribbon panel of eminent Americans” be appointed to review each of the detainees files to assist the administration in making decisions about whether to release the individual detainee or transfer him to another facility for detention and prosecution. Dr. Mendelson emphasizes that this “blue ribbon” panel would be non-partisan and would be comprised of individuals who either had or could in relatively short order obtain necessary security clearances.

What? “A blue ribbon panel of eminent Americans?” Is the CSIS serious? First, we don’t need a group of eminent individuals deciding who stays and who goes amongst the pantheon of terrorist elites currently held at GITMO. This proposal is appallingly short-sighted. Let me speak for the everyday American – we don’t want a bunch of elitist individuals, some of whom aren’t even possessed of appropriate security clearance as this is written deciding on who presents a threat to the civilized world and who doesn’t. It’s as simple as this — when our homes are getting burglarized, we call the police – we don’t call the mayor.

Non-partisan? What is meant by this? The mere fact that the issue of “non-partisanship” comes up in this discussion reveals a most disagreeable context in which this matter is being viewed by CSIS. The relevant issue for detainee review is and should be American safety, not the relative political-correctness of the deliberation.

And, as for the assertion that this should be non-partisan, this review should be as partisan as the incoming administration wants it to be. With the opportunity to forge a new direction for American detention policy comes accountability. If President-Elect Obama needs or desires the opinions of a strictly partisan group of supporters, then so be it – but the decisions that are made will be his and his alone and the outcomes of those decisions and the effect they have on the American people will be his to bear.

You see – “blue ribbon panels of eminent individuals” – is mumbo jumbo language or “retreat speak” for insulating the new administration from the hard decisions that need to be made concerning the GITMO detainees. President-elect Obama doesn’t need a blue ribbon panel of eminent individuals to advise him that Detainee A should be tried criminally, but that Detainee B should be released back to his home country. President-elect Obama will have a cadre of individuals from the military, including career prosecutors, from his national security team and from the Justice Department who are more than capable of providing their considered opinions on the various matters. The issues involved don’t dictate the use of a group of “outside” advisors.

What this suggestion signifies more than anything else is that while it is one thing to speak of the need to protect human rights of terrorist detainees in the abstract, it is quite something else to contemplate their release, when it may forebode further attack and harm to the American people. This is a point confirmed by Mr. Stimson and others who note the GITMO issue is much more complicated than a campaign soundbite.

Mr. Stimson notes that there are really four challenges to the GITMO issue – he calls them “LLPD” – legal, logistical, political and diplomatic. All four areas of concern present daunting challenges to the incoming administration. While believing it can be done, Stimson urges caution as we develop a system that handles the more acute problem of GITMO, but which preserves legal, moral and effective opportunities to deal with future detainees in the war on terror.

In summary, the CSIS draft report doesn’t serve as that effective guidepost, because of three principle infirmities – assumptions without more, hyper-sensitivity to political correctness and a R2T2 proposal which is short on details and a prescription for a lack of accountability. Guantanamo should only be closed when it is in the American interest to close it – that time may be upon us now. But the methods by which it should be done necessarily involve an intricate weaving of national security analysis, human rights protection and aggressive American action to deter further aggression against our country and its interests.

The ultimate solution probably involves a combination of the approaches towards expedited criminal prosecution urged by organizations, like CSIS and Human Rights Watch, and the more cautious approach of preventative detention and use of national security courts urged by Stimson and others to deal with most difficult terrorist cases, particularly those implicating national security and operational secrets in the war on terror. As Benjamin Witte of the Brookings Institution notes, there will be many “sobering moments” when the files of some of the detainees are reviewed by those advocating GITMO’s immediate closure – in sum, these are not nice people and a clean and quick method for a change in their current detention status is difficult to conceive.